United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANTS' MOTION FOR SPOLIATION
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants' Motion for
Spoliation Sanctions. Dkt. #81. Defendants seek an Order
dismissing this case with prejudice on the basis that
Plaintiff intentionally destroyed or failed to preserve
documents related to his occupational and professional duties
during the time periods relevant to this case. Id.
Defendants assert that they have been prejudiced because the
documents they believe once existed but have since been
destroyed are necessary to rebut Plaintiff's testimony as
to the essential functions of his job in 2011 and 2012 after
his shoulder surgery. Dkt. #96 at 6. Plaintiff responds that
there is no evidence he ever destroyed any documents in this
mater, that he has not lied to the Court in previous briefing
about the existence of any evidence, and there is no actual
prejudice to the Defendants as they allege. Dkt. #94.
Plaintiff further argues that to the extent any documents
were destroyed prior to 2011, when the potential for
litigation first arose, he had no duty to preserve any such
documents, and therefore he cannot be sanctioned for any
alleged conduct occurring prior to that date. Dkt. #94 at
19-21. For the reasons set forth herein, the Court DENIES
began practicing dentistry in Washington State in 1998, and
remained involved in that occupation until 2012, when he
moved to California. Dkt. #15 at 2. Shortly after beginning
his practice in Washington, Defendants issued two disability
policies (the “Policies”) to Plaintiff, which are
at issue in this case. The initial Guardian policy was issued
on February 23, 2001, with two Physical Impairment Riders,
containing certain exclusions from coverage. Dkt. #32 at 2.
The first rider excluded “losses resulting from
impairment of the cervical spine or cervical nerve roots,
” and the second rider excluded “losses resulting
from disorders of the right shoulder.” However, the
policy permitted Plaintiff to apply for the cancellation of
both riders if he received no health care services for the
conditions specified in them for five years after issuance,
and if a physician selected by Guardian agreed in writing
that a full medical recovery had occurred. Id. The
five-year waiting period was reduced to one year following
the merger of Guardian and Berkshire in July 2001.
Id. at 3.
on or around February 11, 2002, Plaintiff requested the
removal of the exclusions and stated in his application that
he had “not been treated or seen by any physician,
acupuncturist, naturopath, or physician for any condition
related to neck back or spine, shoulder.” Id.
at 2-3. Defendants granted Plaintiff's request on March
11, 2002, and removed the riders/exclusions. Id. at
3. Plaintiff subsequently applied for a second disability
policy from Berkshire. Id. at 4. The Berkshire
policy, mirroring the Guardian policy, did not contain the
alleges in this lawsuit that he was involved in an automobile
accident in Washington in June 2002. Dkts. #1, Ex. A at A-5,
¶ 11 and #100 at ¶ 11. Afterward, Plaintiff was
treated in Bellevue, Burien, and Issaquah, Washington. Dkt.
#15 at 2. Plaintiff was allegedly involved in a second
automobile accident in June 2005. Dkts. #1, Ex. A at A-5,
¶ 12 and #100 at ¶ 12. Subsequently, Plaintiff had
surgery in Seattle, followed by physical therapy in Redmond,
Washington. Dkt. #15 at 2. In 2011, Plaintiff submitted a
disability claim based on the injuries he sustained from his
auto accidents. Dkts. #1, Ex. A at A-5, ¶ 13 and #100 at
around April 14, 2012, Defendants denied Plaintiff's
claim on the basis that “he was not considered totally
disabled from his pre disability occupational duties”
because his “pre disability occupation was an executive
and owner of dental practices rather than a practicing
dentist.” Dkt. #1, Ex. A at A-6, ¶ 16. The instant
law suit followed, alleging a variety of claims, including
breach of duty of good faith and fair dealing and breach of
contract. Dkts. #1, Ex. A and #100.
Court has a wide range of inherent powers to govern
litigation processes. Chambers v. Nasco, 501 U.S.
32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). One of these
is the discretionary power to levy appropriate sanctions
against a party who prejudices its opponent through the
spoliation of evidence that the spoliating party had reason
to know was relevant to litigation. Glover v. BIC
Corp., 6 F.3d 1318, 1329 (9th Cir. 1993).
is defined as the “destruction or significant
alteration of evidence, or the failure to preserve property
for another's use as evidence, in pending or future
litigation” once the duty to do so has been triggered.
Kearney v. Foley & Lardner, LLP, 590 F.3d 638,
649 (9th Cir. 2009) (internal quotation and citation
omitted). A party seeking sanctions for spoliation first
bears the burden of establishing that the opposing party
destroyed relevant evidence. Ryan v. Editions Ltd. W.,
Inc., 786 F.3d 754, 766 (9th Cir. 2015). To determine
whether spoliation occurred, the majority of courts use some
variation of a three-part test: “(1) that the party
having control over the evidence had an obligation to
preserve it at the time it was destroyed; (2) that the
records were destroyed with a ‘culpable state of
mind;' and (3) that the evidence was ‘relevant'
to the party's claim or defense such that a reasonable
trier of fact could find that it would support that claim or
defense.” Apple Inc. v. Samsung Elecs. Co.,
888 F.Supp.2d 976, 989 (N.D. Cal. 2012) (citing cases).
spoliation is found, then courts generally consider three
factors to determine whether and what type of sanctions to
issue: “(1) the degree of fault of the party who
altered or destroyed the evidence; (2) the degree of
prejudice suffered by the opposing party; and (3) whether
there is a lesser sanction that will avoid substantial
unfairness to the opposing party.” Apple Inc. v.
Samsung Elecs. Co., 888 F.Supp.2d at 992; see also
Leon v. IDX Sys. Corp., 2004 U.S. Dist. LEXIS 31361,
2004 WL 5571412, at *3 (W.D.Wash. 2004) aff'd.,
464 F.3d 951 (9th Cir. 2006).